Should schools drug test?

To Drug Test, or Not to Drug Test? That is the Question. -- "Hamlet," Shakespeare (more or less)

Few Americans who are not lawyers will ever read the full opinion of a case decided by the United States Supreme Court. The Rockridge school district is considering establishing a policy that would require some students to be tested for illegal drugs. A number citizens claim such a policy will violate the "privacy rights" of the students tested.

The leading case on the issue is the Supreme Court 2002 decision in Board of Education v. Earls, 536 U.S. 822. I intend to set forth a number of passages from the opinion. I believe that it is good for citizens to see for themselves the depth of reasoning our court is capable of bringing to an issue.

In 1998, the school district of Tecumseh, Okla., adopted a drug testing policy, which required all students to consent to drug testing prior to participating in any extracurricular activity. Additionally students were required to submit to random drug testing while participating in that activity, and to be further tested at any time upon reasonable suspicion.

Not surprisingly, two students sued the School District, challenging the policy. They alleged that the policy violated their Fourth Amendment rights, and sought to have it struck down as "unconstitutional." They also argued that the district failed to identify a "special need" for testing students who participate in extracurricular activities, and that the "Drug Testing Policy neither addressed a proven problem nor promised to bring any benefit to students or the school."

The Supreme Court, in Earls, disagreed and held that the School's Drug Policy was "reasonable" and constitutional. "Because this Policy reasonably serves the School District's important interest in detecting and preventing drug use among its students, we hold that it is constitutional."

The high court's reasoning to me appears unassailable. I reach that conclusion both as a lawyer and a parent. Whether a policy is reasonable is always a question of fact. Whether a course of action or a policy is reasonable always involves a balancing of the competing facts and interests.

"It is true that we generally determine the reasonableness of a search by balancing the nature of the intrusion on the individual's privacy against the promotion of legitimate governmental interests."

Two excerpts from the court's opinion clearly show the "facts" or "governmental interests" that concerned the court. First, the court stated "(D)rug abuse is one of the most serious problems confronting our society today." In factual support of that statement, the court further note

"(T)]he number of 12th graders using any illicit drug increased from 48.4 percent in 1995 to 53.9 percent in 2001. The number of 12th graders reporting they had used marijuana jumped from 41.7 percent to 49.0 percent during that same period."

The court, however, was entirely mindful of the fact that the Fourth Amendment's guarantees did in fact apply to children in school. "The Fourth Amendment to the United States Constitution protects `(t)he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' Searches by public school officials such as the collection of urine samples, implicate Fourth Amendment interests."

But the court distinguished between the amendment's application in the "criminal context," and its application in the "school context."

"In the criminal context, reasonableness usually requires a showing of probable cause. The probable-cause standard, however, "is peculiarly related to criminal investigations" and may be unsuited to determining the reasonableness of administrative searches where the "Government seeks to prevent the development of hazardous conditions."

And the court explained the distinction.

"(I)n certain limited circumstances, the Government's need to discover such latent or hidden conditions, or to prevent their development, is sufficiently compelling to justify the intrusion on privacy entailed by conducting such searches without any measure of individualized suspicion."

The court then proceeded to analyze the privacy interest involved in the context of the school environment. "(T)he subjects of the Policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster."

The court then stated: "The most significant element in this case is .. that the Policy was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and tutor of children entrusted to its care."

It then elaborated "(W)hen the government acts as guardian and tutor the relevant question is whether the search is one that a reasonable guardian and tutor might undertake." Then the Court went to the heart of the issue.

"(T)he need to prevent and deter the substantial harm of childhood drug use provides the necessary immediacy for a school testing policy. Indeed, it would make little sense to require a school district to wait for a substantial portion of its students to begin using drugs before it was allowed to institute a drug testing program designed to deter drug use."

Some years ago, while I was still on the bench, I stopped to have lunch in downtown Rock Island. A widely respected attorney sat and visited. I told him I had just sent a probationer to prison after a number of unsuccessful attempts at drug treatment. I recall my friend telling me that once his clients became hooked on crack cocaine, "it became their God." I had by that time reached a similar conclusion. He put it more eloquently.

Three additional arguments are generally advanced in opposition to testing: (1) keeping kids drug free is a job for the parents; (2) there is a danger of a "false positives;" and (3) the expenditure of $35 per test is

a waste of funds that could better be utilized elsewhere.

Some years ago, when Alleman was about to begin its program of drug testing, I asked one of the dads what he thought. He replied, "It's a tool that's not available to me. I'd rather know sooner rather than later." I find that logic compelling. When kids spend more waking hours at school than at home, the argument that "it's a job solely for the parents" is less than convincing.

The argument about "false positives" is also unpersuasive. My sources tell me that "false positives" from hair samples are virtually nonexistent. Dave Van Landegen, the head of Rock Island County probation, advises that his office, which has used "preliminary" urine drops for years, solves that problem by immediately having more sophisticated testing done whenever the person dropping contends that the "preliminary test" is faulty.

Nor does the $35 cost argument wash. If the cost per test is indeed $35, then 100 tests cost $3,500. If just one child becomes drug addicted, the cost to send him for in-patient substance abuse treatment is $515 per day at a facility in Rockford. When it is understood that the average stay is 30 days, the cost of treating just one child is in excess of $15,000. When a delinquent child with a drug addiction is sent to St. Charles, taxpayers pay $153 per day.

From my point of view, that of a parent and a lawyer, it makes sense to test. My dad once told me, "If you never start smoking, you'll never have to quit." If just one child doesn't start using drugs, the school renders a great service to that family. In this balancing of "the right of privacy,"

I find it odd that the students they want to test are the ones participating in extra curricular activities. Aren't these after school activities themselves touted as a great way to keep kids off drugs by giving them something productive to do?

So, they are going to discourage participation in helpful programs by testing the kids least likely to be using drugs in the first place.

I'm a bit torn here.
I do believe this would be a violation of rights. But I easily see the other side of this. I think I mostly have a problem with only doing the after school program children. That part is just stupid. If you are "doing this for the good of the child & the economic benefit of the community" then, by God, test every kid in the school! "Why isn't my kid that goes to a part time job every afternoon good enough to be tested?"

I think what might be the better option is to say that every child in the school was to be tested routinely & randomly and that anyone that didn't want to be tested had to have their parents signoff something saying that they agreed to let their child be excluded from said testing.

Then the school is off the hook
"Hey we tried to test your kid, but you said hell no my child is clean. It's all your fault he shot up with heroin in is now laying dead in the gutter Mr. Shitty Parent. Oh, btw those nice officer outside would like to speak with you..."
and the parents have the option of getting their kid tested without having to march into the childâ€™s room & say "ok Johnny, fill up the cup..."

I personally don't think I would ever do that to my child unless the child gave me a reason to. I would have to have some pretty serious suspicions. And if it wasn't something I personally caught "red handed" then the first time I tested would likely be concealed somehow under a "routine physical" and would be between myself & a doctor.

MZMTG - not sure how long it's been since you were in school, but I know back when I was in high school the jock guys were always the ones drinking & doing drugs & everything else they weren't really supposed to be doing.... And hell I was on the debate team for a year. We won't talk about the things I got away with in high school

I agree with testing for performance enhancers in kids playing sports, other than that I am pretty much against testing.

In fact, if you are playing a sport and have a good grade average (which if you are playing a sport you are supposed to have a good GPA) and they find weed in your system, they should either do nothing or give you an honor.

As Ramm said, it does not show the difference between a casual and habitual user.
Second, marijuana is a performance restrictor. The only enhancment it performes is that of hunger and the desire to do nothing. Even if they are a habitual weed user, the fact that they have good grades and are playing sports means they are motivated and strong willed enough to overcome the side effects, or as Ramm said the primary high and side effects are long gone and only the trace remains.

Drug testing kids a bad idea, doctors sayScreening for substance abuse often inaccurate and leads to loss of trust

CHICAGO - Subjecting children to drug testing is usually a bad idea for a host of reasons, including often inaccurate results and loss of the childâ€™s trust, a leading pediatriciansâ€™ group said on Monday.

Increasingly, schools are embarking on drug testing, particularly of student-athletes, following a 2002 U.S. Supreme Court ruling that declared the practice legal.

Parents may also be tempted by newly available home drug screening kits in an effort to catch the problem early.

But the American Academy of Pediatrics, updating its decade-old policy statement on the issue, said screening for illicit drugs is a complicated process prone to errors and cheating, and has not been shown to curtail youngstersâ€™ drug use.

Drug testing also creates a counterproductive climate of â€œresentment, distrust and suspicionâ€ between children and their parents or school administrators, a committee of experts wrote in the March issue of the groupâ€™s journal, Pediatrics.

False-positive results can arise from eating poppy seeds or ingesting certain cold medications, and test results may need to be confirmed with expensive further testing, it said.

Many students are also likely to be aware of Web sites that offer methods of defeating drug testing.

In addition, several illegal drugs are undetectable in urine more than 72 hours after use, and standard tests do not detect often abused substances such as alcohol, Ecstasy and inhalants. Some youngsters may respond to testing by avoiding drugs such as marijuana and instead abuse less-detectable, but more dangerous, drugs, the statement said.

â€œA key issue at the heart of the drug-testing dilemma is the lack of developmentally appropriate adolescent substance abuse and mental health treatmentâ€ in many communities, it said, noting existing programs designed for adults may be unsuitable for children.

The report suggested parents suspicious that a child is abusing drugs or alcohol consult the childâ€™s primary care doctor rather than rely on school-based drug screening or home kits to check their concerns.